2008 edition - Fort Sam Houston - U.S. Army

M.R.E. 505(h)(4)
afforded a reasonable opportunity to seek a determination
under subdivision (i).
(5) Failure to comply. If the accused fails to comply
with the requirements of this subdivision, the
military judge may preclude disclosure of any classified
information not made the subject of notification
and may prohibit the examination by the accused of
any witness with respect to any such information.
(i) In camera proceedings for cases involving classified
information.
(1) Definition. For purposes of this subdivision,
an “in camera proceeding” is a session under Article
39(a) from which the public is excluded.
(2) Motion for in camera proceeding. Within the
time specified by the military judge for the filing of
a motion under this rule, the Government may move
for an in camera proceeding concerning the use at
any proceeding of any classified information. Thereafter,
either prior to or during trial, the military
judge for good cause shown or otherwise upon a
claim of privilege under this rule may grant the
G o v e r n m e n t l e a v e t o m o v e f o r a n i n c a m e r a
proceeding concerning the use of additional classified
information.
(3) Demonstration of national security nature of
the information. In order to obtain an in camera
proceeding under this rule, the Government shall
submit the classified information and an affidavit ex
parte for examination by the military judge only.
The affidavit shall demonstrate that disclosure of the
information reasonably could be expected to cause
damage to the national security in the degree required
to warrant classification under the applicable
executive order, statute, or regulation.
(4) In camera proceeding.
(A) Procedure. Upon finding that the Government
has met the standard set forth in subdivision
(i)(3) with respect to some or all of the classified
information at issue, the military judge shall conduct
an in camera proceeding. Prior to the in camera
proceeding, the Government shall provide the accused
with notice of the information that will be at
issue. This notice shall identify the classified information
that will be at issue whenever that informat
i o n p r e v i o u s l y h a s b e e n m a d e a v a i l a b l e t o t h e
accused in connection with proceedings in the same
case. The Government may describe the information
by generic category, in such form as the military
judge may approve, rather than identifying the clas-
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s i f i e d i n f o r m a t i o n w h e n t h e G o v e r n m e n t h a s n o t
previously made the information available to the accused
in connection with pretrial proceedings. Following
briefing and argument by the parties in the in
camera proceeding the military judge shall determine
whether the information may be disclosed at
t h e c o u r t - m a r t i a l p r o c e e d i n g . W h e r e t h e G o v e r n -
ment’s motion under this subdivision is filed prior to
the proceeding at which disclosure is sought, the
military judge shall rule prior to the commencement
of the relevant proceeding.
( B ) S t a n d a r d . C l a s s i f i e d i n f o r m a t i o n i s n o t
subject to disclosure under this subdivision unless
the information is relevant and necessary to an element
of the offense or a legally cognizable defense
and is otherwise admissible in evidence. In presentencing
proceedings, relevant and material classified
information pertaining to the appropriateness of, or
the appropriate degree of, punishment shall be admitted
only if no unclassified version of such information
is available.
(C) Ruling. Unless the military judge makes a
written determination that the information meets the
standard set forth in (B), the information may not be
d i s c l o s e d o r o t h e r w i s e e l i c i t e d a t a c o u r t - m a r t i a l
proceeding. The record of the in camera proceeding
shall be sealed and attached to the record of trial as
an appellate exhibit. The accused may seek reconsideration
of the determination prior to or during
trial.
(D) Alternatives to full disclosure. If the military
judge makes a determination under this subdivision
that would permit disclosure of the information
or if the Government elects not to contest the relevance,
necessity, and admissibility of any classified
information, the Government may proffer a statement
admitting for purposes of the proceeding any
relevant facts such information would tend to prove
or may submit a portion of summary to be used in
lieu of the information. The military judge shall order
that such statement, portion, or summary by
used by the accused in place of the classified information
unless the military judge finds that use of the
classified information itself is necessary to afford the
accused a fair trial.
(E) Sanctions. If the military judge determines
that alternatives to full disclosure may not be used
and the Government continues to object to disclosure
of the information, the military judge shall issue